Judge sees no evidence of misconduct by Enron prosecution

THE FALL OF ENRONJudge turns back defenseHe sees no evidence of misconduct by prosecution

MARY FLOOD, Copyright 2005 Houston Chronicle

Published 6:30 am, Friday, December 2, 2005

A judge ruled Thursday that he heard no evidence of prosecutorial misconduct in the testimony of two Houston lawyers who were asked if Enron prosecutors improperly intimidated their clients to keep them from aiding ex-executives Ken Lay, Jeff Skilling and Rick Causey in their defense.

U.S. District Judge Sim Lake did not formally rule on a motion to dismiss the case but stated that he has not found government misconduct in any of the defense allegations about the Enron Task Force.

Also Thursday, Lake said he will not enact a gag order to keep the lawyers from making comments to the press unless some misuse of public statements occurs to warrant silencing the parties.

And the judge ordered the government's witness list be made public and many documents in the motion to dismiss now be made public, though possibly after deleting information about people who are not part of the case.

Ex-Enron top executives Lay, Skilling and Causey face fraud, conspiracy and other charges in a trial set to begin next month and likely to last four to six months.

The trio have complained they cannot mount a meaningful defense because witnesses who could help their case fear being charged by the government if they do so.

"I think there's a load of evidence out there that's exculpatory that we may not be able to use and that's not right," said Causey lawyer Reid Weingarten, who asked the judge to force prosecutors to provide statements from many possible witnesses.

On Thursday, attorneys Bob Sussman and Wendell Odom testified about their interaction with prosecutors on behalf of ex-Enron executive clients. Their clients were not called to testify as originally planned.

The judge conducted most of the Thursday hearing in public though some testimony involving attorney-client privilege was held at the bench. Lake said the public has a right to know if there has been prosecutorial misconduct and that the allegations should be "publicly dispelled" if there was none.

Odom said an FBI agent did tell his client, when discussing defendants in the case, something like "these are bad guys or you want to stay away from those guys." Odom said he didn't know if the agent was warning about defendants or their lawyers.

Sussman and Odom said the idea that prosecutors could charge their clients if they help the defense was one of several factors that led them to counsel their clients not to talk to lawyers for Lay, Skilling and Causey.

"Based on my discussions with the task force and my analysis of the situations of my clients and a bunch of different reasons, I thought the prudent thing to do would be to not let my clients" interview with lawyers for Skilling, Sussman said.

But neither lawyer said there was prosecutorial misconduct. Sussmann, asked point blank by Enron Task Force prosecutor Kathy Ruemmler, said prosecutors did nothing improper regarding his three Enron clients in question.

In other matters, Lake said he's skeptical about whether to allow the government to bring up an 18-year-old incident in which Lay did not immediately fire company wrongdoers.

The judge will wait until trial to rule on whether he will admit the so-called "Valhalla" evidence. Lake noted that the incident is old and did not involve a conviction.

Lake also announced that he will do all the questioning of potential jurors to be called Jan. 17 but he will allow the attorneys on both sides to question individuals at the bench out of hearing of the others on the panel.